French Boss sows the seeds of anti-unionism at the European Patent Office

By Renaud Lecadre — 28 June 2016, 17:01

Benoît Battistelli, in March. Photo Emmanuel Dunand. AFP

Benoît Battistelli, President of the European Patent Office, appointed to the job under Nicolas Sarkozy, is coming under fire for staff union discrimination. His fate will be in the spotlight on Wednesday and Thursday when the Administrative Council meets.

At the European Patent Office, a French boss is sowing the seeds of anti-unionism

The only continental administrative body presided over by France, the European Patent Office (EPO) is in utter upheaval. The President, Benoît Battistelli, propelled into power in 2010 by Nicolas Sarkozy, is accused of drifting into dictatorship, discrimination against staff unions, and of denying the least legal challenge to his own little empire. A case of the leadership going off course, which will be coming under scrutiny on Wednesday by the Administrative Council of the EPO, which has its headquarters in Munich but also with a branch office in The Hague. And the risk is that the French presence among the international institutions will be eroded just that little bit more.

So what is Battistelli’s management accused of? In particular, at least three suicides of staff members during his tenure, one actually at the workplace. “Every case is a tragedy, and no-one understood the reason for their action,” was Battistelli’s view of the deaths, when Libération met him last month in Paris. Not surprisingly, the in-house unions have a different take on events: “All he sees are people who he thinks are incompetent and incapable, but no-one can be right all of the time against what everyone else thinks. France’s entire reputation among the international institutions is at stake,” says one French member of SUEPO (Staff Union of the European Patent Office).

Bringing the unions to heel

The EPO employs 6,700 international personnel, on a world market for patents which is fiercely competitive. Inventors (or would-be inventors) are at liberty to opt for any national,
European or Asian office, with a view to getting their inventions patented. “Competition is hard, and the difference in costs between the different offices is considerable,” says Battistelli in justification for his stance. “At the EPO we need to work more and work better. And that’s the programme for which I was appointed”. Liberal be damned; whatever executive role he may playing, the main aim seems to be to bring the unions to heel.

SUEPO won 70% of the votes in the staff elections. Battistelli suppressed his in-house union, banning them from using the internal messaging service, and initiated disciplinary procedures against seven of its executives, before attempting to set up a puppet union of his own – which polled 1% of the votes. “I have been an enthusiast of dialogue with the unions for a long time,” says Battistelli in his defence. Then he ushers in another initiative: Submitting the right to strike to an internal referendum under his tutelage, and with identification of the voters. Unfortunately, despite this close monitoring, in April 90% of the staff (of a 55% turnout) voted in favour of the latest strike.

When you’re up against the boss, where do you turn? SUEPO went to the Court of Appeal in The Hague, which in February 2015, ordered the EPO “to allow free access, and not to block
emails deriving from suepo.org”, ruling that the protection of union rights was “manifestly deficient”.Battistelli viewed this as a crime of lèse-majesté, an infringement on his executive authority, and took refuge behind the judicial immunity of his international institution. For very good reasons, namely: “The principle of immunity is not to protect people in a privileged position, but to protect against interference by outside nations.” SUEPO immediately interpreted this as: “A black pit for internal democracy, and for union and legal rights.” The EPO boss does not refute this, but refers in turn to “serial litigants”, “inadmissible” in his eyes, then stands his ground on his own rights as an executive: “There are no class actions when it comes to social affairs”…

Sabotaging the bicycle

Up to now, France has backed the French president of a continental institution. Last April, Emmanuel Macron received Benoît Battistelli at Bercy. “You have my support in all you are doing to adapt and modernise the EPO,” the first president is supposed to have said, at least according to the second one. And what about everyone else? Another demonstration by the staff of the EPO, at Munich or The Hague, without stopping in front of the French consulate… “Bercy is trying to understand his psychopathology,” is how one French union member tried to come to terms with events. “France must take on its responsibilities,” says William Bourdon, advocate for SUEPO. “It is regrettable and dangerous that a European institution which is supposed to be setting an example is so little under its control.”

On Wednesday, at the meeting of the Administrative Council, the EPO is going to be taking another look at its resolution adopted last March, when a previous Council expressed its “deep concerns about the social turmoil inside the Office”, then noted that “the internal sanctions and disciplinary procedures have been widely challenged by public opinion”. It may well be time to turn words into deeds. The President, reinstated last year for a three-year mandate, maintains that he is a victim of a “press campaign”, and will defend his stance to the death. His latest initiative: A press release complaining about the sabotage of his bicycle in the EPO car park, with the brake cables cut, a “deliberate act of vandalism personally aimed at the President”. Since then he has assigned himself six bodyguards.

Renaud Lecadre

The above correctly notes, as we pointed out before, that this whole affair and all these scandals are not at all beneficial to France (just to a few French individuals whom Battistelli gave high salary jobs). This fosters/creates a negative impression and French politicians are rightly concerned about this. It could become another Bygmalion affair. As for the bicycle angle, it has become somewhat of an internal joke. The above article focuses on Battistelli’s attacks on unions but not on his attacks on judges (those who assess and reassess patents, as this new example serves to remind us. There is an attack not only on EPO (Office) staff but also the Administration/Organisation (no wonder there are suicides, as noted above). Even stakeholders/applicants are negatively affected.

As a reminder of Battistelli’s attacks on the boards, consider Sonja Behrens’s report with highlights on important bits. SUEPO provided the following English translation in its public site:

EPO Dispute: Judges feel threatened by Office Boss Battistelli

The decision taken last week by the Enlarged Boards of Appeal of the European Patent Office (EPO) to stop disciplinary proceedings against a suspended judge is, in a sense, a
settling of scores with Office President Benoît Battistelli. Specifically, present members of the EPO Boards of Appeal also feel themselves threatened, according to the document. Under these circumstances, their independence as judges is no longer guaranteed.

For many months a bitter dispute has been ongoing within the Office, with its 7,000 strong workforce, between the management and a large number of the employees and the staff unions. This has been prompted by the efforts at reform initiated by Battistelli – and the methods with which he intends to put his plans into practice. Employees complain of interference with their basic rights, including by way of internal investigation procedures.

The dispute over the suspension from office of a judge is the high point of the conflict – so far. The proceedings started to become noticeably unusual when the Enlarged Boards of Appeal arranged for a public hearing in the suspension proceedings, so as to ensure transparency in what was already a contentious issue, whereupon Office President Battistelli
intervened in writing. He demanded a hearing behind closed doors – and that, as the judges saw it, was impermissible meddling in the proceedings.

Judges see a “general, abstract threat”

According to the decision which JUVE has in its possession, Battistelli had argued that a public hearing was unlawful. The personal presence of witnesses from the Office was something he considered unnecessary for the proceedings, and nor would he authorise it. Moreover, the Enlarged Boards of Appeal were apparently not even allowed to investigate the matter again. And on top of all this, he made it clear that he would do everything in his power to ensure that business at the Munich patent authority could in future be run in an orderly fashion.

The court viewed this as a “general, abstract threat”, which affected every member of the Enlarged Boards. The intervention by the President, and thereby the Executive, was impermissible in terms of legal procedure, according to the judges, because Battistelli is not a party to these proceedings. The judges see their independence, which is firmly anchored in Article 23 of the European Patent Convention (EPC), as being fundamentally undermined.

Off-centre from the outset

Last autumn the Administrative Council of the EPO, on which representatives of the 38 Member States sit, called upon the Enlarged Boards of Appeal responsible to recommend dismissal in the disciplinary proceedings against the suspended judge. In so doing, the Administrative Council were already bowing to pressure from the President, who at the end of 2014 had imposed a ban on the former member of the Board of Appeal from entering the premises, and had him escorted out of the Office building in Munich. Over the following months, despite the uproar, the Administrative Council did not distance itself from the proceedings which had been initiated, nor from Battistelli’s most recent letter.

The suspended judge maintains, among other things, that the investigations against him incurred formal procedural errors – and for this reason alone the presumption of innocence could no longer be entertained in this respect, becausethe Office itself had broken the confidentiality of the proceedings.

In view of the circumstances, last week the Board of Appeal refused to dismiss the accused judge. The proceedings were terminated without a substantive decision, and, specifically on the significant grounds that, in view of the threats from the Office management, an independent ruling was impossible. As well as that, the Board recommended that the suspended judge be reimbursed for all the costs of the proceedings. They did not, however, regard themselves as empowered to order the compensation. The judges also accorded with the defendant’s wishes that the decision be made public.

Whether Battistelli, in the top position at the Office, continues to enjoy the support of the Administrative Council will become clear soon enough: At the end of June the Council is actually scheduled to rule on the reform of court procedures within the EPO. (Sonja Behrens)

The above seems reasonably accurate (we cannot see anything which is clearly wrong) and it alludes to Battistelli's media attacks on the accused judge (violating the EPO’s already-low standards for internal investigations). How can anyone take Battistelli seriously when he keeps breaking his own rules? Now he attacks even justice itself. “I fail to see how it increases or enhances the autonomy of the Boards of Appeal,” one person wrote about Battistelli’s coup last week. Here is the comment in full:

The point as I see it is the following:

Under the “old” arrangements, the judicial bodies (Boards of Appeal and EBA) adopted their own Rules of Procedure which were then subject to approval by the appointing authority (the AC which is the EPO “legislative”).

Under the new arrangements the Rules of Procedure for the judicial bodies will now be adopted by a sub-committee of the AC (the BOAC) and presumably then approved by the AC itself pursuant to Article 23 (4) EPC (which has not been changed).

In other words: the Rules of Procedure will now be adopted by a sub-committee of the “legislative” and approved by the “legislative” itself.

I cannot see this as being anything other than a transfer of competence from the judicial organs (who previously disposed of the competence to adopt the RoP) to the legislative (which now disposes of both the competences to “adopt” and to “approve” the RoP).

Undoubtedly this is all just one small detail in the grand scheme of things.
But I fail to see how it increases or enhances the autonomy of the Boards of Appeal or even the “preception of independence” so close to the heart of the EPO President.

To me it seems to be a very clear erosion of autonomy.
But maybe I am missing something?

“BB’s [Battistelli's] original proposal (that he should have sole responsibility) was absolutely wrong,” wrote another person, in a comment which some interpreted as pro-Battistelli views:

Back to Basics

I think what you are missing is that in most jurisdictions, court rules of procedure are produced on a collaborative basis. Yes, the judges themselves should be at the heart of it, but the fairest and most efficient outcome is achieved when other points of view are also taken into account. This is how it works in the UK and UPC, for example.

The requirement for separation of the judiciary from the executive arm of the EPO means that BB’s original proposal (that he should have sole responsibility) was absolutely wrong.

But the current situation where the Boards have sole responsibility and don’t have to listen to other views is not necessarily the best either.

Sure, you can argue about whether the proposed solution achieves the best balance. But it is more balanced than either of the above alternatives. And it does mean that the Boards themselves will still be drafting the rules, even though others will also have a say which they don’t at the moment.

At least one person thought that the above may have been “the President’s sock-puppet”:

Looks like the President’s sock-puppets are busy today.

Under the current arrangement, the Boards don’t have the sole responsibility.
There is a classical “separation of powers” arrangement whereby the Boards “propose” (i.e. adopt the rules) and the AC “disposes” (i.e. approves).

Under that arrangement the AC can exercise a certain amount of control over any proposed changes to the RoP by withholding its approval.

Now we go to an arrangement where the AC will both “propose” (via the BOAC) and “dispose”.

As Back to Basics said that seems like a transfer of competence from the Board to the AC. All of the power is now concentrated in the hands of the legislature (AC).
In a situation where the legislature is subservient to the executive (President) that is worrying.

And as for “others” having a say, pray tell how is that supposed to come about?

Not everyone agreed with this interpretation. One later response to it said:

Looks like the President’s sock-puppets are busy today.

The President employs sock puppets who describe his proposal as “absolutely wrong”?

Get real.

Now we go to an arrangement where the AC will both “propose” (via the BOAC) and “dispose”.

Or instead of making things up, we could actually read CA/43/16 Rev.1. The RoP will not be proposed by the AC. Nor by the BOAC.

They will be proposed by the President of the Boards of Appeal, advised by the Presidium. See new Rules 12c(2) and 12b(3)(c) EPC.

And as for “others” having a say, pray tell how is that supposed to come about?

See the Regulations of the Boards of Appeal Committee, Article 4(2)(i):

Quote:
[the BOAC shall] “carry out, where necessary, user consultations on matters of direct concern to users,such as proposals to amend the Rules of Procedure of the Boards of Appeal and of the Enlarged Board of Appeal.”

Comments thereafter focused on the lack of consultation and oversight:

Regarding the others, did the document not deal with this by saying that the IP world would not be represented as only some areas of the BoAC’ s remit would concern them? Will need to check the wording but I thought it was rather curt and direct.

In fact in the explanatory notes to CA 43/16, it is stated:
” 20. In the user consultation carried out by the Office, users said they would like to be
granted observer status on the BOAC. Given that the BOAC will deal with a variety
of issues which are of no direct interest to users, this is not deemed appropriate.
However, where necessary, the BOAC should carry out broad user consultations,
in particular on proposals to amend the RPBA/RPEBA.”

What you are missing, Back to basics, is a picture of the President and the National delegations on holidays on a beach – possibly separatedly – sipping cocktails and yawning at your legal analysis that will change absolutely nothing.

Can you see it now? Yes? I thought so.

Sorry to be blunt – nonetheless, you may have a point in your analysis.

“To render them independent,” noted another person, “the Boards will be moved outside Munich in the middle of nowhere. The rest are just details that do not affect independence.”

This led to a long discussion about the ‘exile’ of the boards (to a yet-unspecified location):

To render them independent the Boards will be moved outside Munich in the middle of nowhere.

The same sick idea crossed my mind too…

Excerpt from the EPO Codex, Circular 115 of 10 March 1983, “Guidelines regarding travel in the interest of the service at the place of employment”:

(1) The place of employment shall be regarded as:
[...]
b) the districts listed in the annex for employees in post in [...] Munich.

Is this list applicable to the definition of “Munich” for, say, the purpose of Art. 6(1) EPC?

And that list can be modified by the President, as attests footnote 2:

Modified by decision of the President on recommendation of the GAC.

Technically he could define Kreuzberg, Wedding or Marzahn or even Bremerhaven, Frankfurt/Oder or Gelsenkirchen as being part of the definition of “Munich”, and no one would be able to do anything about it.

Another bit of input regarding the location, as per the EPC:

Excerpt from the EPO Codex …

I don’t think it is necessary to look that far.

The EPO branch at The Hague (Art. 6(2) EPC) is located in Rijswijk. Rijswijk is a fully independent municipality whose only connection to The Hague is that it borders The Hague.

According to Visser, The Annotated EPC:
- When the EPC 1973 was concluded, the offices of the IIB (predecessor of the EPO branch at The Hague) were located in The Hague. When the EPO actually started, the IIB had moved to Rijswijk. There has never been an EPO office in The Hague.
- During the revision of the EPC in 2000 it was “decided (I’m not sure in what sense… probably simply agreed among the delegations) that “any geographical location in the EPC should be interpreted broadly, e.g. The Hague should mean the province of South Holland and Munich the country of Bavaria. Any geographical allocation would at some point restrict the reallocation of offices.”

I guess one should be able to find this passage somewhere in the minutes of the 2000 diplomatic conference.

So… Munich = Munich area? Why think so small?

So DG3 could be relegated to the fortress in Landsberg or some old pigsty around Augsburg without further ado. Hof might be remote enough for the President’s taste. That’s a not nice thought to start the week-end with…

I was well aware of the very long-standing resistance of the borough of Rijswijk against its annexation by The Hague, but never really made the connection with the EPO. The ugly dovecote in Rijswijk was however inherited from the IIB.

Weren’t there plans to create a new site in ZH about 20 years ago? The name “Voorburg” resonates in my brain cells, but I’m not sure that was the place. This suburb is currently amalgamated with Leidschendam. I heard it “sous le manteau” that a plot of land had even been acquired, to be later cast off, yielding a beautiful profit set in bright red numbers. Anyway, it ain’t the kind of story you would normally read in the Gazette.

I checked Art. 6 in my own copy of Visser, the French patent office is characterised as “disorganised”. I don’t think this is the proper assessment, but then my edition dates back from when BB was still the head honcho there.

The upheaval around the so-called “Areas of Competence” clearly was just starters.

“IIRC,” one person wrote, “the enlarged Board of Appeals already decided, that The Hague means anywhere in the Netherlands, and Munich is therefore interpreted as anywhere in Bavaria…. Will try to refind that sometime….”

Citing this page, it’s later noted that “[i]t was Leidschendam and if I’m not mistaken the EPO made a loss on the plot of land. An architectural design competition had been held and the project was awarded in 1990 (building to be finished near the end of 1994), but patent filings collapsed so it was all cancelled.

“I believe that the Dutch authorities that bought back the land for a lower price then again made a nice profit by changing the zoning regulations to make it suitable for housing. But I might not have all the details right.”

We recently heard some rumours about missing floors in the new building of the EPO in the Netherlands, but insiders told us that these rumours were false.

Looking at another thread at IP Kat, one person asked: “Why is this blog still silent about the Administrative Council approving the proposed reform last Thursday, with only some relatively minor amendments? This approval is apparently perceived as unbelievable by anybody (except the EPO administration) who dares to express an opinion on the matter.”

Yes, well, there has been little or nothing on the subject, except in anonymous comments from people who are likely insiders. Going back to the original thread, people can see that the President of the EPO is left controlling the other “President” (BOAC) by appointment, which demonstrates how the Administrative Council effectively helped Battistelli destroy the boards’ independence. To quote:

“Now we go to an arrangement where the AC will both “propose” (via the BOAC) and “dispose”.”

It seems a bit more subtle to me.

Previously, it was the presidium of the boards that drafted the RoP.
Now, it is the president of the boards. The presidium only advises the president of the boards.
So this power has moved from the presidium to the president of the boards.

Here comes the rub: the president of the boards will be hand-picked by the EPO president (sure, a “joint proposal” by the EPO president and the BOAC).

No big deal, because once appointed he’ll be independent? Let’s see…
Will his reappointment after expiry of his 5-year term be essentially automatic? Or will the EPO president have a big say in this?

We’ll know soon enough how reappointment of the president of the boards will be handled.

Whatever happens next at the EPO (the past few days have been disappointingly quiet, even at SUEPO’s Web site), the perception of a Battistelli-led EPO is negative enough to merit immediate change. How will it come about? Perhaps stakeholders will vote with their feet or fees. █

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